Citation Nr: 1501854
Decision Date: 01/14/15 Archive Date: 01/20/15
DOCKET NO. 12-32 653 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island
THE ISSUE
Entitlement to a higher initial rating in excess of 30 percent for service-connected depression not otherwise specified (depression NOS), as secondary to service-connected nocturnal seizure disorder.
ATTORNEY FOR THE BOARD
N. Nelson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1973 to June 1976.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, that granted service connection for depression NOS as secondary to service-connected nocturnal seizure disorder, and assigned a 30 percent disability rating under Diagnostic Code 9434, effective August 4, 2011.
In November 2012, the Veteran notified the Board that he did not want a Board hearing.
FINDING OF FACT
For the entire appeal period, the service-connected depression NOS is productive of a disability picture that more nearly approximates that of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms including depressed mood, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood, with a GAF score between 60 and 65. There is no evidence reduced reliability and productivity, including no evidence of panic attacks, difficultly understanding complex commands, impaired judgment, or impaired abstract thinking.
CONCLUSION OF LAW
For the entire appeal period, the criteria for the assignment of a disability evaluation in excess of 30 percent for service-connected depression NOS have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify and Duty to Assist
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi,
16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Here, the RO provided a notice letter to the Veteran in August 2011, prior to the adjudication of the instant claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims for service connection, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claims. The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective dates. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
The Veteran's claim for a higher rating for the service-connected depression NOS is a downstream issue, which was initiated by the notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Thus, there is no duty to provide additional notice in this case.
The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. The Board notes that there has been no allegation from the Veteran that he has been prejudiced by any of notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds that the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless.
The Board further finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) were obtained. VA medical records dated from October 2010 and November 2013 are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim.
The Veteran underwent VA examinations in November 2011 and November 2013 to obtain medical evidence regarding the etiology and severity of the claimed disability. The Board finds the VA examinations adequate for adjudication purposes. The examinations were performed by medical professionals based on a review of the Veteran's medical treatment records, solicitation of history and symptomatology from the Veteran, and examination of the Veteran. The examination reports are accurate and fully descriptive, discussing the Veteran's symptoms and opining on the effects social and occupational effects of the depression NOS. The Board finds that for these reasons, the Veteran has been afforded adequate examinations. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The Board finds that the duties to notify and assist the Veteran have been met, so no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.
Pertinent Law and Regulations
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999).
The rating criteria for rating mental disorders reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130 (2014).
A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.
A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id.
A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id.
The Court has held that Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32).
GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Id.
Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id.
Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Id.
Scores ranging from 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). Id.
In Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002), the Court stated that "when evaluating mental health disorders, the factors listed in the rating criteria are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme. Rather, the determination should be based on all of a Veteran's symptoms affecting his level of occupational and social impairment." The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. Id.
Once assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.
In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Analysis
The Veteran contends that his service-connected depression NOS warrants at least at 50 percent rating. The Veteran asserts that his depression is moderate and that his earnings capacity is impaired because his depression prevents him from being able to advance, which warrants at least a 50 percent rating. See the May 2012 notice of disagreement; the November 2012 VA Form 9.
The Board finds that for the entire period of appeal, the service-connected depression NOS has not more closely approximated the criteria for a 50 percent rating under Diagnostic Code 9434.
VA treatment records show that in September 2011, the Veteran was screened for depression and the results were negative.
In October 2011, the Veteran underwent a VA mental health consultation. The Veteran reported depression symptoms of little interest or pleasure, feeling down, poor appetite, feelings of failure, and guilt. He reported having suicidal ideation one month prior without plan or intent. He explained he gets down about his seizure condition but thinks of his family and would never harm himself. His symptoms included excessive worry, difficulty controlling worry, restlessness, tense, irritability and difficulty sleeping. He denied any manic/hypomanic or psychotic symptoms. He stated that his depressive symptoms made it somewhat difficult to do his work, take care of things at home, or get along with others. The Veteran was screened for cognitive impairment using the Blessed-Orientation-Memory-Concentration Test, and was found not to have significant cognitive impairment. A PHQ-9 depression screening score of 9 indicated mild depressive symptoms. He denied hallucinations or delusions. He indicated he had never been married and was employed full time. He described contact with friends or relatives less than monthly. He noted that in the past month people often acted inconsiderate or unsympathetic to him but that he did have some friends and relatives that made him feel loved. No GAF was assigned.
The Veteran was afforded a VA examination in November 2011. The Veteran reported that he was employed, but he had problems at work because some coworkers picked on him and that he missed 4-5 days of work due primarily to his depression. The examining physician diagnosed the Veteran with depression NOS, and stated that he had symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran's depression was of moderate severity, with moderate attention and concentration impairment. The Veteran's GAF score was 60, indicating that he was at the bottom of the score range for moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV. The examiner also noted that the Veteran had adequate behavior and appearance; no speech pattern abnormalities; responsive thought content without evidence of psychotic disturbance; logical, coherent, and focused thought processes; no suicide or homicidal ideations, intentions, or plans; well-oriented cognitive functions; no deficiencies of cognition or memory; and adequate judgment and insight. Mood was moderately irritable and affect appropriate to the mood. Attention and concentration were noted to be moderately impaired. The examiner stated that the Veteran's depression was best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.
A May 2012 VA treatment record indicates that the Veteran felt "a little depressed" due to the fact that he turned 60 years old, but that he felt better. A November 2012 VA treatment record indicates that the Veteran had mild depression, with symptoms including feeling down, withdrawing from social relationships, anhedonia, and lack of energy. During another November 2012 VA neuropsychology consultation, the Veteran indicated he had never married but had an adult son. The relationship with his son was described as strained. Outside of work the Veteran spent time remodeling his home, watching television and reading the newspaper. He has worked at the VA since the 1980s and described his work performance as good until his 2009 hospitalization for seizures. Since then he felt less productive at work but his supervisors have not noted any performance decline. He explained his memory functions have been worse and he was concerned about the perceived decline. The physician noted no apparent functional declines and despite slight productivity declines he continued to work full time and has not been reprimanded for performance. Examination reflected he was well dressed and groomed and attentive and alert. There were no frank abnormalities of speech or language. There was some difficulty providing a precise medical history. Mood was "not so good" and affect was congruent. He was extremely worried about his cognitive functioning and he would cover his face during testing and audibly criticize his performance despite doing fairly well. He described awakening from sleep. Rapport was established quickly and easily. He credibly denied suicidality. No hallucination or delusions were evidenced or endorsed. Thoughts seemed logical and goal-directed although content was preoccupied with possible memory impairment. The examiner performed multiple tests and concluded that there was very subtle executive dysfunction characterized by diminished letter fluency and very poor visuospatial organization and planning along with quite weak hand strength. Despite concerns about memory his performance was average or better. Psychiatrically he had mild depressive symptoms irregular sleep and health related anxiety.
A VA treatment record from October 2013 indicates that the Veteran was service-connected for depression, which was inactive.
The Veteran underwent another VA examination in November 2013. The Veteran indicated he was not married and indicated he had a grown son who e did not see all that often. He indicated he stayed to himself and his girlfriend left him about a year before as he did not go out to do things. He indicated he watched a lot of TV and felt the pressure at work resulted in concentration and focus being off causing him to make more mistakes. The Veteran had symptoms of depressed mood, mild memory loss (such as forgetting names, directions, or recent events), flattened affect, and disturbances of motivation and mood. The examining psychologist indicated that the Veteran had a GAF score of 65, indicating mild symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV. The examiner noted that the Veteran worked full-time and had been employed at his current job since 1989. The examiner indicated that the Veteran's level of occupational and social impairment with regards to his depression NOS was best characterized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.
The Board finds that the weight of the evidence establishes that for the entire period of appeal, the Veteran's PTSD manifested by mild to moderate symptoms, including depressed mood, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. Moreover, VA treatment records and medical evidence show that for the appeal period, the Veteran has had GAF scores between 60 and 65, indicative of mild to moderate symptoms. See DSM-IV. The November 2011 VA examiner indicated that the Veteran's depression was best summarized as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Such impairment warrants a 30 percent disability rating. The November 2013 VA examiner indicated that the Veteran's symptoms caused less impairment than would warrant a 30 percent rating. Furthermore, the Veteran has been consistently employed since 1979 and since 1989 at his current job, and both VA examiners found that he was competent to hand his financial affairs.
Thus, the Board also finds that for the entire period of appeal, the evidence preponderates against the assignment of a 50 percent rating for the Veteran's service-connected depression NOS. The evidence establishes that the Veteran's depression does not more nearly approximate occupational and social impairment with reduced reliability and productivity, which would warrant a 50 percent rating under Diagnostic Code 9434. The criteria for a 50 percent rating includes symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.
In this case, for the relevant time period, the Veteran was not found to have circumstantial, circumlocutory, or stereotyped speech; panic attacks; difficulty in understanding complex commands; impairment of short- and long-term memory such that he retains only highly learned material or forgets to complete tasks; impaired judgment; or impaired abstract thinking. While the Veteran reported memory loss, the examiner indicated it was mild and a February 2013 VA note indicated that his memory was actually better than age-matched peers. The record has not suggested that the memory loss resulted in the Veteran retaining only highly learned material or forgetting tasks. The Board has considered that the Veteran was shown to have some symptoms that indicate a 50 percent rating could be warranted, including flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board finds, however, that the VA examiners' statements characterizing and explaining the overall impact of the Veteran's depression are more indicative of the Veteran's total disability picture than a partial list of his symptoms. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). Significantly, even considering these symptoms, the Veteran has not had them with such frequency and severity to result in occupational and social impairment with reduced reliability and productivity. The Board carefully considered the Veteran's report that he is prone to more mistakes due to stress at work. While the Board is very sympathetic to this, the record does not at the present time demonstrate that the symptoms have caused reduced reliability or productivity. In fact, the VA neuropsychological consultation indicated that the Veteran has not been reprimanded for his performance. Rather the record reflects the Veteran has been employed for over 25 years and described some relationships with friends and family.
Similarly, while the Veteran described one instance of suicidal ideation, which is one of the symptoms that appears in the criteria for a higher 70 percent evaluation, on subsequent visits he did not endorse any ideation. Furthermore, the Veteran reported that he would never act on his thoughts and the record as a whole does not reflect occupational or social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. As noted above his judgment has always been intact, thinking always reported as normal, and he has maintained employment.
In addition, the Veteran's GAF scores have been generally indicative of mild to moderate symptoms. Although his November 2011 GAF scores of 60 put him just inside the score range for moderate symptoms, a score of 61, just one point higher, would have put him in the score range for mild symptoms. The Veteran's November 2013 GAF score of 65 clearly indicated mild symptoms or some difficulty in social or occupational functioning but generally functioning satisfactorily.
Accordingly, for the period of appeal, the Board finds that the Veteran's symptoms of depression NOS were not of such frequency, severity, and duration that they resulted in occupational and social impairment with reduced reliability and productivity to warrant a higher 50 percent evaluation during this period.
The Board further finds that a staged rating is not for application in this case because a 30 percent rating for the service-connected depression NOS is warranted for the entire appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999).
Finally, the Board has considered whether referral for an "extraschedular" evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule and no referral is required.
In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology and is found inadequate, it must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").
When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
In this case, the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected disability that would render the schedular criteria inadequate. The Veteran's symptoms, including depressed mood, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood, are contemplated in the rating assigned; thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he merely disagreed with the assigned disability rating for his level of impairment. In other words, he did not have any symptoms from his service-connected disabilities that are unusual or different from those contemplated by the schedular criteria. Moreover, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, the Board finds that referral for consideration of an extraschedular rating is not warranted, as the manifestations of the Veteran's disability are considered by the schedular rating assigned. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.
For the above reasons, the Board concludes that, for the entire period of appeal, an increase in excess of 30 percent for the service-connected depression NOS is not warranted.
ORDER
A higher initial rating in excess of 30 percent for service-connected depression NOS is denied.
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H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs